OMNIBUS AMENDMENT TO COLLATERAL DOCUMENTS
AMENDMENT (this "AMENDMENT"), dated as of April 15, 1999, to:
(a) the Parent Pledge and Security Agreement, dated as of March 30, 1998 (as
amended by a Substitution Agreement dated on or about July 10, 1998, and as
heretofore otherwise amended, supplemented or otherwise modified, the "PARENT
PLEDGE AND SECURITY AGREEMENT"), between SUNBEAM CORPORATION (with its
successors, the "PARENT") and FIRST UNION NATIONAL BANK, as Administrative
Agent; (b) the Parent Security Agreement, dated as of July 10, 1998 (as
heretofore amended, supplemented or otherwise modified, the "PARENT SECURITY
AGREEMENT"), between the Parent and the Administrative Agent; (c) the Subsidiary
Pledge and Security Agreement, dated as of March 30, 1998 (as amended by
Amendment No. 1 dated as of July 10, 1998, a Substitution Agreement dated on or
about July 10, 1998, an Amendment dated as of December 23, 1998, and as
heretofore otherwise amended, supplemented or otherwise modified, the
"SUBSIDIARY PLEDGE AND SECURITY AGREEMENT"), among each subsidiary of the Parent
signatory thereto (with their respective successors, the "GRANTORS") and the
Administrative Agent; and (d) the Subsidiary Security Agreement, dated as of
July 10, 1998 (as heretofore amended, supplemented or otherwise modified, the
"SUBSIDIARY SECURITY AGREEMENT"; and together with the foregoing agreements,
collectively, the "COLLATERAL DOCUMENTS"), among the Grantors and the
Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Parent and the Administrative Agent are parties
to the Credit Agreement, dated as of March 30, 1998 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among the Parent,
the Subsidiary Borrowers referred to therein, the Lenders party thereto, Morgan
Stanley Senior Funding, Inc., as Syndication Agent, Bank of America National
Trust and Savings Association, as Documentation Agent, and the Administrative
Agent;
WHEREAS, pursuant to the Credit Agreement, the Parent and the
Grantors executed the Collateral Documents in favor of the Administrative Agent;
WHEREAS, the parties to the Credit Agreement are entering into
an Amendment No. 5, Third Waiver and Agreement, dated as of even date herewith
(the "FIFTH AMENDMENT"), to and under the Credit Agreement; and
WHEREAS, in connection with the Fifth Amendment, the parties
to the Collateral Documents have agreed to amend the Collateral Documents as
more fully set forth below;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Credit Agreement has the meaning assigned to such term in the Credit Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the applicable Collateral Document shall, after this
Amendment becomes effective, refer to such Collateral Document as amended
hereby. Except as herein specifically amended, all terms and provisions of each
Collateral Document shall remain in full force and effect and shall be performed
by the parties thereto according to its terms and provisions. This Amendment is
limited as specified and shall not constitute a modification, amendment or
waiver of any other provision of the Collateral Documents or indicate the
Lenders' willingness to consent to any such other modification, amendment or
waiver.
SECTION 2. AMENDMENT TO PARENT PLEDGE AND SECURITY AGREEMENT.
The Parent Pledge and Security Agreement is amended as follows:
(a) Section 1 of the Parent Pledge and Security Agreement is
amended:
(i) to add in its appropriate alphabetical order in
such Section the following new definition:
""INVESTMENT PROPERTY" means all "investment
property" as such term is defined in Section 9-115 of
the Uniform Commercial Code as in effect from time to
time in the State of New York.";
(ii) to add the phrase ", including without
limitation, the Intercompany Agreements" immediately before
the period at the end of the definition of "PLEDGED
INSTRUMENTS" in such Section; and
(iii) to add immediately after each reference to the
term "the Parent" in the definition of "SECURED OBLIGATIONS"
in such Section the phrase "or any Subsidiary Borrower";
(b) Section 2 of the Parent Pledge and Security Agreement is
amended:
(i) to add immediately after the phrase "its Direct
Subsidiaries" in the third sentence in paragraph (A) in such
Section the phrase "and Indirect Subsidiaries"; and
(ii) to add immediately after paragraph (C) in such
Section the following new paragraph (D):
"(D) PLEDGED INSTRUMENTS. Each Pledged
Instrument and each document and instrument that
secures or guarantees payment of such Pledged
Instrument constitutes the legal, valid and binding
obligation of the maker thereof, enforceable in
accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or
other
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laws affecting creditors' rights generally and
subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at
law. As of March 31, 1999, the outstanding principal
balance of the Intercompany Agreement, dated April 6,
1998, made by Coleman in favor of the Parent was not
less than $395,000,000 and, as of the Fifth Amendment
Effective Date, such Intercompany Agreement is not
subject to any defense, counterclaim or offset
whatsoever, other than the right to make repayments
thereunder.";
(c) Section 3 of the Parent Pledge and Security Agreement is
amended:
(i) to add immediately after the phrase "any of its
Direct Subsidiaries" in paragraph (A)(2) of such Section the
phrase "or Indirect Subsidiaries";
(ii) to add immediately after the phrase "any of its
Direct Domestic Subsidiaries" in paragraph (A)(3) in such
Section the phrase "or Indirect Subsidiaries";
(iii) to renumber paragraphs "(A)(4)" and "(A)(5)" in
such Section as new paragraphs "(A)(5)" and "(A)(6)",
respectively;
(iv) to add immediately after paragraph (A)(3) in
such Section the following new paragraph (A)(4):
"(4) all Investment Property;";
(v) to replace the phrase "clauses (1) through (4)
hereof" in new paragraph (A)(6) in such Section with the
phrase "clauses (1) through (5) hereof (including without
limitation, all dividends or other income from the Investment
Property or the Pledged Securities, collections thereon or
distributions or payments with respect thereto) and all
collateral security and guarantees given by any Person with
respect to all or any of the collateral described in clauses
(1) through (5) hereof (including without limitation, the
collateral security provided under the Coleman Intercompany
Collateral Documents)";
(vi) to replace the word "owes" in each of paragraphs
(B), (C) and (D) in such Section with the words "instrument
evidencing"; and
(vii) to add immediately after the phrase "any of its
Direct Subsidiaries" in paragraph (E) in such Section the
phrase "or Indirect Subsidiaries";
(d) Section 5 of the Parent Pledge and Security Agreement is
amended:
(i) to add immediately before the period at the end
of the first sentence in paragraph (A) in such Section the
parenthetical "(including without limitation, in the case of
any Investment Property and any other relevant Collateral,
taking
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any actions reasonably deemed necessary to enable the
Administrative Agent to obtain "control" (within the meaning
of the applicable Uniform Commercial Code) with respect
thereto and, in the case of any Pledged Instrument secured by
any collateral, execute and deliver UCC-1 financing statements
or UCC assignments, as appropriate, in form and substance
satisfactory to the Administrative Agent, evidencing the
pledge and assignment to the Administrative Agent of the
interests of the Parent in such collateral securing such
Pledged Instrument, and original counterparts of each security
document and guarantee executed in connection with the grant
of any collateral to secure any such Pledged Instrument)"; and
(ii) to add immediately after paragraph (B) in such
Section the following new paragraphs (C) and (D):
"(C) The Parent authorizes the
Administrative Agent to endorse on a schedule to each
Intercompany Agreement, all loans and advances made
by the Parent to any Direct Subsidiary or Indirect
Subsidiary (including without limitation, any
Intercompany Agreement made by Coleman in favor of
the Parent), and all payments made on account of
principal and the amounts of interest paid or
capitalized. Each such endorsement shall constitute
"prima facie" evidence of any Indebtedness (including
interest thereon) owed by such Direct Subsidiary or
Indirect Subsidiary and the amounts repaid by such
Direct Subsidiary or Indirect Subsidiary. The failure
to make any such endorsement shall not affect the
obligations of such Direct Subsidiary or Indirect
Subsidiary under such Intercompany Agreement.
(D) The Parent agrees that it will not, in
any manner that could reasonably be expected to
materially impair the value of such Pledged
Instrument as Collateral or the rights of the Parent
with respect thereto (i) enter into any agreement
amending or supplementing any Pledged Instrument or
any document or instrument evidencing any collateral
security or guarantee with respect to such Pledged
Instrument; (ii) waive or release any obligation of
any party to any Pledged Instrument or to any
document or instrument evidencing the collateral
security or guarantee with respect to such Pledged
Instrument; (iii) release any Pledged Instrument or
any collateral security or guarantee with respect to
such Pledged Instrument; or (iv) fail to exercise
promptly and diligently any right which it may have
under, or in respect of, any such Pledged Instrument,
including without limitation, any failure which could
result in any right of offset against sums payable
under any such Pledged Instrument; PROVIDED that,
without the prior written consent of the
Administrative Agent and the other Secured Parties,
or otherwise as expressly set forth in the Coleman
Intercompany Collateral Documents, the Parent shall
not (x) at any time take or omit to take any action
of the type contemplated by clauses (i) through (iv)
above in respect of any Pledged Instrument
constituting an Intercompany Agreement made by
Coleman in favor of the Parent, or any
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document or instrument evidencing any collateral
security or guarantee with respect to such
Intercompany Agreement (including without limitation,
the Coleman Intercompany Collateral Documents) or (y)
other than to make loans and advances permitted by
the Credit Agreement under such Intercompany
Agreement and, subject to the rights of the
Administrative Agent under this Agreement (including
without limitation, under Sections 8 and 10 after the
occurrence and during the continuance of a Default or
an Event of Default), to collect repayments under
such Intercompany Agreement, exercise any rights and
remedies against Coleman under such Intercompany
Agreement or under the Coleman Intercompany
Collateral Documents, all of which rights and
remedies have been pledged and assigned to the
Administrative Agent pursuant to this Agreement,
constitute Collateral under this Agreement, and shall
be exercised by the Administrative Agent, for the
benefit of the Secured Parties, to the extent, at the
times and in the manner set forth in this Agreement
and the Coleman Intercompany Collateral Documents.";
(e) Section 9 of such Parent Pledge and Security Agreement is
amended to add immediately after each reference to the term "the
Pledged Stock" in such Section the phrase "and the Investment
Property"; and
(f) Section 11 of the Parent Pledge and Security Agreement is
amended to add immediately after the parenthetical "(whether or not in
effect in the jurisdiction where such rights are exercised)" in the
first sentence in such Section the phrase ", including without
limitation, all rights of a secured party under the Uniform Commercial
Code in respect of any collateral security granted by any Person to
secure any Pledged Instrument or any other Collateral, including
without limitation, under the Coleman Intercompany Collateral Documents
to secure the Intercompany Agreement made by Coleman".
SECTION 3. AMENDMENT TO PARENT SECURITY AGREEMENT. The Parent
Security Agreement is amended as follows:
(a) Section 1 of the Parent Security Agreement is amended:
(i) to add immediately after each reference to the
term "the Parent" in the definitions of "LETTER OF CREDIT
OBLIGATION" and "SECURED OBLIGATIONS" in such Section the
phrase "or any Subsidiary Borrower";
(b) Section 4 of the Parent Security Agreement is amended:
(i) to add immediately after the term "Asset Sale" in
clause (y) in paragraph (i) in such Section the phrase "or
other disposition"; and
(ii) to amend paragraph (l) in such Section in its
entirety to read as follows:
5
"(l) In the event the Parent proposes to
take any action contemplated by Section 4(a)(i),
4(a)(ii) or 4(a)(iii), at the request of the
Administrative Agent, the Parent shall, at its cost
and expense, and prior to taking such proposed
action, cause to be delivered to the Secured Parties
an opinion of counsel, satisfactory to the
Administrative Agent, substantially in the form of
Exhibit E, or otherwise in form and substance, and
covering such matters relating to such action,
reasonably satisfactory to the Administrative
Agent."; and
(c) Section 12 of the Parent Security Agreement is amended to
add immediately after each reference to "Asset Sale" in paragraph (c)
in such Section the phrase "or other disposition".
SECTION 4. AMENDMENT TO SUBSIDIARY PLEDGE AND SECURITY
AGREEMENT. The Subsidiary Pledge and Security Agreement is amended as follows:
(a) Section 1 of the Subsidiary Pledge and Security Agreement
is amended:
(i) to add in its appropriate alphabetical order in
such Section the following new definition:
"INVESTMENT PROPERTY" means all "investment
property" as such term is defined in Section 9-115 of
the Uniform Commercial Code as in effect from time to
time in the State of New York.";
(ii) to add the phrase ", including without
limitation, the Intercompany Agreements" immediately before
the period at the end of the definition of "PLEDGED
INSTRUMENTS" in such Section; and
(iii) to replace the term "Foreign Direct Subsidiary
Shares" in the definition of "PLEDGED STOCK" in such Section
with the term "Direct Foreign Subsidiary Shares";
(b) Section 2 of the Subsidiary Pledge and Security Agreement
is amended:
(i) to add immediately after the phrase "each Direct
Domestic Subsidiary" in the second sentence in paragraph (A)
in such Section the parenthetical "(or in the case of Coleman
prior to the Coleman Merger Effective Date, all of the issued
and outstanding capital stock of Coleman owned by such
Grantor)";
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(ii) to replace the term "Foreign Direct Subsidiary"
in the second sentence in paragraph (A) in such Section with
the phrase "Direct Foreign Subsidiary";
(iii) to add immediately after the phrase "each
Direct Foreign Subsidiary" (as amended by clause (ii) above)
in the second sentence in paragraph (A) in such Section the
parenthetical "(or in the case of Sunbeam Corporation (Canada)
Limited, all of the issued and outstanding stock of Sunbeam
Corporation (Canada) Limited owned by such Grantor)";
(iv) to add immediately before the phrase "any of
their Direct Subsidiaries" in the third sentence in paragraph
(A) in such Section the phrase "the Parent, any Material
Subsidiaries or"; and
(v) to add immediately after paragraph (C) in such
Section the following new paragraph (D):
"(D) PLEDGED INSTRUMENTS. Each Pledged
Instrument and each document and instrument that
secures or guarantees payment of such Pledged
Instrument constitutes the legal, valid and binding
obligation of the maker thereof, enforceable in
accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and
subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at
law. Sunbeam Products, Inc. hereby represents and
warrants that, as of the Fifth Amendment Effective
Date, the outstanding principal balance on the
Material Subsidiary Intercompany Agreement dated
April, 1998, made by Coleman in favor of Sunbeam
Products, Inc. was $0. Coleman Worldwide Corporation
hereby represents that, as of the Fifth Amendment
Effective Date, the outstanding principal balance on
the Intercompany Agreement dated July 10, 1998, made
by Coleman in favor of Coleman Worldwide Corporation
was $0. Upon the request of the relevant Grantor, the
Administrative Agent shall deliver promptly, after
the Fifth Amendment Effective Date, each such
Intercompany Agreement to such Grantor for
cancellation.";
(c) Section 3 of the Subsidiary Pledge and Security Agreement
is amended:
(i) to add immediately before the phrase "any of its
Direct Subsidiaries" in paragraph (A)(2) of such Section the
phrase "the Parent, any Material Subsidiary or";
(ii) to add immediately before the phrase "any of its
Direct Domestic Subsidiaries" in paragraph (A)(3) in such
Section the phrase "any Material Subsidiary or";
7
(iii) to renumber paragraphs "(A)(3)" and "(A)(4)" in
such Section as new paragraphs "(A)(4)" and "(A)(5)",
respectively;
(iv) to add immediately after paragraph (A)(2) in
such Section the following new paragraph (A)(3):
"(3) all Investment Property; and";
(v) to replace the phrase "clauses (1) through (3)
hereof" in new paragraph (A)(5) in such Section with the
phrase "clauses (1) through (4) hereof (including without
limitation, all dividends or other income from the Investment
Property or the Pledged Securities, collections thereon or
distributions or payments with respect thereto) and all
collateral security and guarantees given by any Person with
respect to all or any of the collateral described in clauses
(1) through (4) hereof";
(vi) to replace the word "owes" in each of paragraphs
(B), (C) and (D) in such Section with the words "instrument
evidencing"; and
(vii) to add immediately before the phrase "or any of
their Direct Subsidiaries" in paragraph (E) in such Section
the phrase ", the Parent, any Material Subsidiary";
(e) Section 5 of the Subsidiary Pledge and Security Agreement
is amended:
(i) to add immediately before the period at the end
of the first sentence in paragraph (A) in such Section the
parenthetical "(including without limitation, in the case of
any Investment Property and any other relevant Collateral,
taking any actions reasonably deemed necessary to enable the
Administrative Agent to obtain "control" (within the meaning
of the applicable Uniform Commercial Code) with respect
thereto and, in the case of any Pledged Instrument secured by
any collateral, execute and deliver UCC-1 financing statements
or UCC assignments, as appropriate, in form and substance
satisfactory to the Administrative Agent, evidencing the
pledge and assignment to the Administrative Agent of the
interests of the applicable Grantor in such collateral
securing such Pledged Instrument, and original counterparts of
each security document and guarantee executed in connection
with the grant of any collateral to secure any such Pledged
Instrument)"; and
(ii) to add immediately after paragraph (B) in such
Section the following new paragraphs (C) and (D):
"(C) Each Grantor authorizes the
Administrative Agent to endorse on a schedule to each
Intercompany Agreement or Material Subsidiary
Intercompany Agreement, all loans and advances made
by such Grantor to any Direct Subsidiary or Indirect
Subsidiary, and all payments
8
made on account of principal and the amounts of
interest paid or capitalized. Each such endorsement
shall constitute "prima facie" evidence of any
Indebtedness (including interest thereon) owed by
such Direct Subsidiary or Material Subsidiary and the
amounts repaid by such Direct Subsidiary or Material
Subsidiary. The failure to make any such endorsement
shall not affect the obligations of such Direct
Subsidiary or Material Subsidiary under such
Intercompany Agreement or Material Subsidiary
Intercompany Agreement.
(D) Each Grantor agrees that it will not, in
any manner that could reasonably be expected to
materially impair the value of such Pledged
Instrument as Collateral or the rights of such
Grantor with respect thereto (i) enter into any
agreement amending or supplementing any Pledged
Instrument or any document or instrument evidencing
any collateral security or guarantee with respect to
such Pledged Instrument; (ii) waive or release any
obligation of any party to any Pledged Instrument or
to any document or instrument evidencing the
collateral security or guarantee with respect to such
Pledged Instrument; (iii) release any Pledged
Instrument or any collateral security or guarantee
with respect to such Pledged Instrument; or (iv) fail
to exercise promptly and diligently any right which
it may have under, or in respect of, any such Pledged
Instrument, including without limitation, any failure
which could result in any right of offset against
sums payable under any such Pledged Instrument";
(f) Section 8 of the Subsidiary Pledge and Security Agreement
is amended to add immediately after each reference to the term "the
Pledged Stock" in such Section the phrase "and the Investment
Property";
(g) Section 10 of the Subsidiary Pledge and Security Agreement
is amended to add immediately after the parenthetical "(whether or not
in effect in the jurisdiction where such rights are exercised)" in the
first sentence in such Section the phrase ", including without
limitation, all rights of a secured party under the Uniform Commercial
Code in respect of any collateral security granted by any Person to
secure any Pledged Instrument or any other Collateral"; and
(h) Schedules I and II to the Subsidiary Pledge and Security
Agreement are replaced with new Schedules I and II in the forms
attached to this Amendment as Exhibits A and B, respectively.
SECTION 5. AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT. The
Subsidiary Security Agreement is amended as follows:
(a) Section 1 of the Subsidiary Security Agreement is amended:
9
(i) to add immediately after each reference to the
term "the Parent" in the definition of "LETTER OF CREDIT
OBLIGATION" in such Section the phrase "or any Subsidiary
Borrower"; and
(ii) to replace each reference to the term "the
Parent" in the definition of "SECURED OBLIGATIONS" in such
Section with the term "the Obligors"; and
(b) Section 4 of the Subsidiary Security Agreement is amended:
(i) to add immediately after the term "Asset Sale" in
clause (y) in paragraph (i) in such Section the phrase "or
other disposition"; and
(ii) to amend paragraph (l) in such Section in its
entirety to read as follows:
"(l) In the event a Grantor proposes to take
any action contemplated by Section 4(a)(i), 4(a)(ii)
or 4(a)(iii), at the request of the Administrative
Agent, such Grantor shall, at its cost and expense,
and prior to taking such proposed action, cause to be
delivered to the Secured Parties an opinion of
counsel, satisfactory to the Administrative Agent,
substantially in the form of Exhibit E, or otherwise
in form and substance, and covering such matters
relating to such action, reasonably satisfactory to
the Administrative Agent."; and
(c) Section 12 of the Subsidiary Security Agreement is amended
to add immediately after each reference to "Asset Sale" in paragraph
(c) in such Section the phrase "or other disposition".
SECTION 6. GOVERNING LAW. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 8. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. After
giving effect to this Amendment, each of the Parent and the Grantors hereby
represents and warrants that all representations and warranties applicable to
the Parent or such Grantor, as the case may be, contained in the Credit
Agreement and the other Loan Documents are true and correct as of the date
hereof and that no Default or Event of Default shall have occurred and be
continuing or would result from the execution and delivery of this Amendment.
SECTION 9. EFFECTIVENESS. This Amendment shall become
effective on the date on which the Administrative Agent shall have received from
the Parent and each of the Grantors, a counterpart hereof signed by such party
or facsimile or other written confirmation (in form satisfactory to the
Administrative Agent) that such party has signed a counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
SUNBEAM CORPORATION
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
BRK BRANDS, INC.
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
COLEMAN WORLDWIDE CORPORATION
By /s/ Ronald R. Richter
--------------------------------------
Name:
Title:
DDG I, INC.
By /s/ Janet Kelley
--------------------------------------
Name:
Title:
FIRST ALERT, INC.
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
GHI I, INC.
By /s/ Janet Kelley
--------------------------------------
Name:
Title:
LASER ACQUISITION CORPORATION
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
SI II, INC.
By /s/ Janet Kelley
--------------------------------------
Name:
Title:
SIGNATURE BRANDS, INC.
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
SIGNATURE BRANDS USA, INC.
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
SUNBEAM AMERICAS HOLDINGS, LTD.
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
SUNBEAM PRODUCTS, INC.
By /s/ Bobby Jenkins
--------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By /s/ T.M. Molitor
--------------------------------------
Name: T.M. Molitor
Title: SVP
OP II, INC.
By /s/ Janet Kelley
--------------------------------------
Name: Janet Kelley
Title: Vice President